Nicolas and Comcare
[2007] AATA 1858
•16 October 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1858
ADMINISTRATIVE APPEALS TRIBUNAL )
)A2006/145;
)A2007/1551
GENERAL ADMINISTRATIVE DIVISION ) Re JACQUES NICOLAS Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb, Member
Dr M. Miller AO, MemberDate16 October 2007
PlaceCanberra
Decision The decision under review in matter A2006/145 is affirmed.
The reviewable decision in matter A2007/1551 is set aside and in place thereof the Tribunal decides that the amount Mr Nicolas was able to earn from 18 April 2006 to 28 February 2007 is to be calculated at the level of 25 hours per week in relation to his normal weekly earnings.
...........signed...................................
Mr S. Webb, Presiding Member
CATCHWORDS
COMPENSATION - upper limb injury - psychological sequella - incapacity for work - rehabilitation program - extent of compensable incapacity for work - ability to earn in suitable employment - offer of suitable employment conditional on completion of rehabilitation program - interruption of rehabilitation program - reasonable - personal factors affecting ability to earn - decision based on 25 hours per week affirmed - decision based on 30 hours per week set aside
Safety, Rehabilitation and Compensation Act 1988 ss 4, 19, 37, 67
Telstra v Slater [2001] FCA 149
Pelgrave v Comcare (2002) 36 AAR 1
Comcare Australia v Rowe (2002) 35 AAR 410
Australian Postal Corporation v Nadge (1994) WAG 36; (1994) 10 FC 22
Re Pelgrave and Comcare [2005] AATA 214
Re Sadek and Commonwealth (1988) 14 ALD 769
Migge v Wormald Brothers Industries Limited [1972] 2 NSWLR 29
Comcare v Sahu-Kahn [2007] FCA 15
Canute v Comcare [2006] HCA 47
Woodbridge v Comcare (1994) 20 AAR 196
REASONS FOR DECISION
16 October 2007 Mr S. Webb, Member
Dr M. Miller AO, Member1. Jacques Nicolas injured his right upper limb in the course of his employment with the Department of Immigration and Citizenship (formerly the Department of Immigration and Indigenous Affairs) (the Department) in Canberra. He claimed and was paid compensation for incapacity in relation to the injury. He undertook a rehabilitation program and a graduated return to work. Before completing the program there was a crisis involving his son and Mr Nicolas returned to Melbourne to be with his family. He was certified totally unfit for work. He successfully claimed compensation in relation to a psychological sequella but his claim for total incapacity benefits was rejected. Comcare determined that Mr Nicolas was only partly incapacitated for work on the basis that he was able to work 25 and later 30 hours per week in his employment with the Department. Mr Nicolas has challenged these determinations, thus far without success.
2. The determinations that were the subject of reconsideration decisions[1] and are presently in issue are:
19 April 2006: liability denied for total incapacity on the basis of a deemed ability to earn at the level of 25 hours per week from 15 December 2005 to 17 April 2006;[2]
19 July 2006: deemed ability to earn at the level of 30 hours per week from 18 April 2006 to 19 July 2006;[3]
27 September 2006: incapacity entitlements based on ability to earn at the level of 30 hours per week from 20 July 2006 to 20 September 2006;[4]
11 October 2006: incapacity entitlements based on ability to earn at the level of 30 hours per week from 18 April 2006 to 1 November 2006;[5]
6 December 2006: incapacity entitlements based on ability to earn at the level of 30 hours per week from 2 November 2006 to 24 January 2007;[6] and
14 February 2007: incapacity entitlements based on ability to earn at the level of 30 hours per week from 25 January 2007 to 28 February 2007.[7]
[1] T90 and S41.
[2] T86.
[3] S4.
[4] S11.
[5] S13.
[6] S17.
[7] S24.
3. With reference to the period from 15 December 2005 to 28 February 2007, the issues to be determined are:
(a)the extent of Mr Nicolas’ incapacity for work that is the result of his compensable injuries; and
(b)the amount of Mr Nicolas’ weekly compensation entitlements.
4. In order to address the second issue, it is necessary to determine the amount Mr Nicolas was able to earn in ‘suitable employment’ (the AE amount) and the amount of his normal weekly earnings (the NWE amount); Telstra v Slater [2001][8]. It is necessary to determine what constitutes ‘suitable employment’ for Mr Nicolas (Pelgrave v Comcare (2002)[9]) and the correct weekly AE amount from 15 December 2005 to 28 February 2007. There is no dispute concerning the applicable NWE amount; that matter was not agitated before us and we make no findings in relation to it. In order to properly determine the correct AE amount, we must have regard to the matters set out at subs 19(4). Thus, the following questions must be answered in relation to the period in question:
(a)What is suitable employment for Mr Nicolas?
(b)Was Mr Nicolas in suitable employment?
(c)Did Mr Nicolas fail to complete a reasonable rehabilitation program, and if so, was the failure reasonable in all of the circumstances?
(d)Are there any other relevant matters to which the Tribunal should have regard?
[8] FCA 149.
[9] 36 AAR 1.
5. At the outset, it is necessary to address issues of credit concerning Mr Nicolas. We found Mr Nicolas’ evidence to be unreliable. He gave contradictory evidence in relation to medical treatment, for example, concerning Dr Lavoipierre. It appeared to us that other aspects of his evidence, concerning his rehabilitation program in Canberra for example, and concerning the history of his injury, were selective and infected with exaggeration and inconsistency. Thus, we will treat his evidence with caution and will not accept his evidence on controversial points without corroboration.
the extent of Mr Nicolas’ incapacity for work resulting from his compensable injuries
6. Mr Nicolas says that he was totally incapacitated for work from 15 December 2005 until he resumed a graduated return to work on 3 November 2006. The injuries he has suffered as a result of his employment are, in Mr Nicolas’ submission, a physical right upper limb injury and psychological conditions in the form of Chronic Regional Pain Syndrome Type 1 and anxiety/depression. These injuries, Mr Nicolas says, were aggravated by the requirement for him to complete a rehabilitation program in Canberra, away from his family in Melbourne. In Mr Nicolas’ submission, the aggravation of his psychological conditions was materially contributed to by his employment and cannot be solely attributed to a family crisis at that time. He asserts that he was totally incapacitated for work as a result of his compensable injuries during the relevant period.
7. We do not agree.
8. Guidance concerning what is meant by the term ‘incapacity for work’ is given at subs 4(9) of the Act. To be compensable, incapacity for work must be the result of an injury under the Act (ss 14 and 19).
9. As will appear, we are reasonably satisfied that Mr Nicolas’ compensable injuries resulted in an incapacity to engage in work at the same level at which Mr Nicolas was engaged by the Commonwealth prior to his injury in February 2005. Thus, it is necessary to consider the extent of incapacity pursuant to section 4(9)(b) of the Act, following the formulation set out in Comcare Australia v Rowe (2002)[10].
[10] 35 AAR 410.
10. Mr Nicolas first complained of right upper limb symptoms on 18 February 2005. He subsequently obtained medical treatment from his general practitioner, Dr Yeung, on 3 March 2005. Prior to that injury, Mr Nicolas was employed on a full time ongoing basis by the Department as an Executive Level 1 Information Technology Process Manager in Canberra. This work involved significant use of computers that required Mr Nicolas to use a keyboard and a mouse.
11. On 11 April 2005, Mr Nicolas was certified unfit for work. On 2 May 2005, he returned to work with medical restrictions (reduced hours and light duties). On 19 May 2005, his case was referred to a rehabilitation provider for assessment.[11] On 3 June 2005, an Initial Needs Assessment was completed.[12] On 9 June 2005, Mr Nicolas agreed to a rehabilitation return to work plan.[13] Mr Nicolas obtained various medical treatments and undertook a graduated return to work. On 2 and 18 November 2005, Dr Koperska, Mr Nicolas’ treating general practitioner at the time, certified that Mr Nicolas was fit to work 5 hours per day for five days per week on restricted duties, and that prospectively, from 5 December 2005, he would be able to increase his hours to 6 hours per day.[14]
[11] T21.
[12] T26.
[13] T29.
[14] T58 folio 97 and T64 folio 109.
12. On that evidence, which we accept, Mr Nicolas was partially incapacitated for work on 18 November 2005. We so find.
13. On 28 November 2005, Mr Nicolas took leave from his employment in order to attend upon his family in Melbourne. There is no compelling evidence that he was suffering any additional incapacity for work at that time. We note that on 22 November 2005, Mr Nicolas was very worried and crying as a result of family problems when he attended on Dr Koperska. On 25 November 2005, the Doctor wrote a letter in support of Mr Nicolas’ request for compassionate leave “so he can attend to urgent family matters in Melbourne”.[15] On 23 November 2005, Ms Wilson (treating psychologist) wrote a similar letter in which she explained:
Mr Nicolas’ adult son suffers from a mental illness and lives in the family home in Melbourne with Mr Nicolas’ wife. Over the past weekend Mr Nicolas’ son has become psychotic and suicidal, and has been threatening Mr Nicolas’ wife so that she has had to move out of the house on several occasions since Friday 18 November. The situation is causing so much strain, that family relations with the other sibling have also broken down and they are not allowing Ms Nicolas into their home as they fear the other son will come and attack her.
Mr Nicolas has been understandably distraught, teary, sleepless, and feels guilty and helpless that he cannot support his wife and son since Friday. He also fears for both their lives. Under the circumstances, and in light of the son’s psychiatrist [Dr Piperoglou] written on 23 November, I would recommend that Mr Nicolas be granted annual leave to return to Melbourne urgently and assist to manage the situation. His wife is distraught and not coping.
I would imagine that it would take a minimum of 2 weeks to begin to stabilize the situation, and ideally a six week period would be required. In the longer term, it would be ideal given the medical situation, for Mr Nicolas to be assisted if possible to transfer to Melbourne.[16]
[15] Exhibit A4.
[16] Exhibit A2.
The letter written by Dr Piperoglou is in evidence.[17] Plainly enough, on that evidence, Mr Nicolas had compelling reasons to attend upon his family at that time.
[17] Exhibit A3.
14. Dr Lavoipierre (psychiatrist) certified that Mr Nicolas was unfit for work from 15 December 2005 to 6 September 2006.[18] However, Dr Lavoipierre gave oral evidence that his certificates were “a holding pattern” on the basis that Mr Nicolas needed to be in Melbourne with his family and that he did not treat Mr Nicolas. According to Dr Lavoipierre, Mr Nicolas’ psychological condition was exacerbated by separation from his family. That is a matter to which we will return. We note in passing that Dr Lavoipierre previously treated Mr Nicolas for a psychological condition from 17 April 2001 to 28 February 2002.[19]
[18] T69, T79, T84, T85, T93, T101, S5 and S6.
[19] Exhibit R2.
15. Mr Nicolas consulted Dr Lavoipierre on 30 September 2005 and, on the history provided by Mr Nicolas, the Doctor recorded “Ideally he would probably do better working back in Melbourne. Will organise a certificate for him.”[20] On 18 October 2005, Dr Lavoipierre wrote to Comcare and stated that “I believe his [Mr Nicolas’] condition would be helped by transferring him back to Melbourne as the strain of commuting would not be there anymore”.[21] On 19 January 2006, Dr Lavoipierre wrote to Comcare and stated that Mr Nicolas’ anxiety disorder “is now complicated [and aggravated] by the recent illness of his son”, and reiterated his belief that Mr Nicolas’ condition would be helped by transferring him to Melbourne “as there will not be the stress of commuting and he would be close to his son who is likely to have ongoing problems for a long time to come”.[22] Dr Lavoipierre gave oral evidence that transferring Mr Nicolas to Melbourne “would have made treatment simpler”, and that it was “a reasonable assumption that he [Mr Nicolas] would do better here [in Melbourne] than he would in Canberra”. Dr Lavoipierre conceded that he did not treat Mr Nicolas or prescribe him medication, and stated that his main goal was to have Mr Nicolas transferred to Melbourne to be with his family. What occurred during the consultations recorded in the Doctor’s clinical notes[23] remains opaque. As it appears to us, Dr Lavoipierre took on the role of an advocate for Mr Nicolas to facilitate his transfer to Melbourne on medical grounds.
[20] Exhibit R2.
[21] T53 folio 92.
[22] T74 folio 127.
[23] Exhibit R2.
16. We accept Dr Lavoipierre’s evidence that the medical certificates he issued were “a holding pattern” to enable Mr Nicolas to remain off work and with his family in Melbourne. However, we are not persuaded that Dr Lavoipierre’s certificates are reliable evidence of the extent of Mr Nicolas’ incapacity for work during the period from 15 December 2005 to 6 September 2006. Furthermore, we accept that commuting may have been stressful for Mr Nicolas and that as the intensity of his concern for his son and his family increased, so too did the level of his stress. However, there is no compelling evidence that Mr Nicolas suffered any incapacity for work as a result of the stress of commuting from Canberra to Melbourne. As will appear, we are reasonably satisfied that the emerging family crisis in Melbourne in November 2005 was a powerful factor that was acting upon Mr Nicolas’ mind and on his psychological condition at least from 11 November 2005 and in all likelihood for a period of weeks or even months prior to that date.
17. Dr Lavoipierre’s evidence must be considered in relation to the evidence of Dr Koperska (treating general practitioner), Dr Muirden (consultant rheumatologist) and Dr Mickleburgh (consultant psychiatrist). We are reasonably satisfied that, when certifying Mr Nicolas’ fitness on 18 November 2005, Dr Koperska had regard to a report by Ms Wilson dated 15 November 2005.[24] While difficult to read, Dr Koperska’s clinical note from 18 November 2005, that Mr Nicolas was attending on Ms Wilson, points to that finding.[25] Dr Muirden and Dr Mickleburgh reported in January 2006 that Mr Nicolas was fit to return to the rehabilitation program and his graduated return to work.[26] We accept that evidence and so find. The evidence of Drs Koperska, Dr Muirden and Dr Mickleburgh is more persuasive than that of Dr Lavoipierrre. Dr Koperska was Mr Nicolas’ treating general practitioner, and Drs Muirden and Mickleburgh are independent experts with relevant qualifications and experience. We note Dr Mickleburgh’s comments and recommendations concerning the desirability of transferring Mr Nicolas to Melbourne.[27]
[24] T65.
[25] Exhibit R6.
[26] T75 folio 134 and T76 folio 149, respectively.
[27] T76 folio 149.
18. Thus, we find that Mr Nicolas was partially incapacitated by his original upper limb injury from 28 November 2005 to 6 September 2006, to the extent that he was able to work 25 hours per week on modified duties. We are not persuaded that Mr Nicolas suffered any incapacity for work as a result of his psychological injury during this period, and so find. However, we accept that Mr Nicolas had compelling reasons to attend upon his family in Melbourne. We note that Mr Nicolas’ family was in crisis during this period of his absence from work. Even so, it appears that he did not obtain medical treatment for his psychological condition while he was in Melbourne.
19. Counsel for Mr Nicolas, Mr Richards, submitted that Mr Nicolas’ psychological injury was materially contributed to by the requirement on him to complete a rehabilitation program in Canberra, away from the comfort and support of his family. That submission is not made out.
20. We are not persuaded by Dr Lavoipierre’s evidence that Mr Nicolas’ employment and rehabilitation program in Canberra materially contributed to aggravate his psychological injury, or that it was the cause of any incapacity for work during the period in issue. As will appear, we are reasonably satisfied that it did not.
21. As we have said, Mr Nicolas had compelling reasons to attend upon his family from 28 November 2005. As it appears to us, on his own evidence and that of Ms Wilson, Mr Nicolas was experiencing anxiety, guilt and stress as the result of his son’s illness for weeks and possibly months before that date. On 17 November 2005 (a Thursday), Ms Wilson recorded in her clinical notes “Wife rang Friday saying son v. erratic… she said I can’t cope…”.[28] The Friday referred to was in all likelihood 11 November 2005. Considering the content of Ms Wilson’s note and Mr Nicolas’ own evidence, we are reasonably satisfied that the family crisis in Melbourne concerning his son had been emerging and increasing for some time, and was apparent to Mr Nicolas on and before 9 November 2005. It appears, nevertheless, that Mr Nicolas did not relate his concerns about his family difficulties to Ms Wilson during the psychological assessment she undertook on 9 November 2005, reporting only “Feelings of frustration and isolation due to distance from wife and sons in Melbourne whom he cannot visit as frequently due to participation in a return to work program and less opportunity for flex time and annual leave breaks”.[29] As it appears to us, that is a wholly inadequate representation of the powerful stressors that, in all likelihood, were then acting upon Mr Nicolas.
[28] Exhibit R1.
[29] T65 folio 111.
22. We do not accept that Mr Nicolas’ assertion in the context of a medical review on 27 October 2005, that his “wrist pain had been worse over the past two weeks”[30] is sufficient evidence on which to conclude that his injury was deteriorating at that time. It does not appear that Dr Koperska was of that opinion. On 15 November 2005 (following the psychological assessment on 9 November 2005), Ms Wilson reported that “Mr Nicolas’ autonomic nervous system arousal appears to be heightened due to anxiety levels, and therefore is probably contributing to his pain symptoms”.[31] It appears that she attributed his anxiety to the original injury, employment factors and to the aforementioned feelings of frustration and isolation due to distance from his family.[32] It is curious that Ms Wilson does not attribute Mr Nicolas’ anxiety in any measure to the emerging crisis in his family.
[30] T62 folio 107.
[31] T65 folio 110.
[32] T65 folio 111.
23. We find that curious, as Mr Nicolas experienced significant anxiety, distress and guilt as a result of the family crisis at that time. We are satisfied that as the family crisis in Melbourne grew, so too did Mr Nicolas’ anxiety, distress and guilt. These symptoms were not the result of his rehabilitation program in Canberra. As it appears to us, it is more likely than not that Mr Nicolas’ concerns about his son’s behaviour and mental health grew in his mind as his son’s behaviour deteriorated, perhaps in anticipation of the annual anniversary of the violent events that precipitated the psychiatric condition. It is more likely than not that those concerns were active in Mr Nicolas’ mind when he consulted Dr Lavoipierre on 30 September 2005. On the evidence that inference lies open before us. Nevertheless, it appears that a critical point was reached on or about 23 November 2005. Ms Wilson noted “Son getting psychotic. Bullying wife. Wife v. scared. V. distressed last 2 days… Wife crying on phone. Running away from home…”.[33] It was those events that compelled Mr Nicolas to leave his work in order to attend upon his family in Melbourne.
[33] Exhibit R1, clinical note dated 23 November 2005.
24. Even though Mr Nicolas was required to complete the rehabilitation program in Canberra, it was open to him to apply for a transfer to Melbourne. The weight of the evidence is that in November and December 2005, it was desirable for Mr Nicolas to be transferred to Melbourne in order to help and support his family.[34] Even though there is some evidence that Mr Nicolas discussed such matters with his case manager,[35] there is no evidence that he formally applied for any such transfer in November 2005, or in the subsequent period prior to his return to work in September 2006. The evidence is that he was granted leave on application subject to his entitlements. The contemporaneous medical evidence, at the highest, is that “his condition would be helped by transferring him back to Melbourne” (Dr Lavoipierre[36]). That may have been so, but it does not follow that Mr Nicolas’ employment in Canberra prior to December 2005 materially contributed to aggravate his psychological injury, or resulted in any incapacity for work. Dr Lavoipierre’s assessment in those terms on 18 October 2005 and 19 January 2006 is not evidence that any such aggravation occurred. We are reasonably satisfied that it did not. The questions whether Mr Nicolas’ rehabilitation program was rendered unreasonable or whether his employment was rendered unsuitable by these circumstances is a matter to which we will return.
[34] For example, Exhibit A2, Exhibit A3, Exhibit A4, T53, T74, and S3 folio 14.
[35] Exhibit A9.
[36] T53 folio 92 and T74.
25. Considering all of these circumstances, we find that the rehabilitation program Mr Nicolas was undertaking in Canberra did not materially contribute to any aggravation of Mr Nicolas’ compensable injuries or incapacity for work.
26. Mr Richards submitted that Mr Nicolas’ psychological injury was vulnerable to aggravation and that any such aggravation is compensable unless it is solely the result of a new and intervening cause. Authority for that submission is purportedly to be found in Australian Postal Corporation v Nadge (1994)[37], Re Pelgrave and Comcare [2005][38] and Re Sadek and Commonwealth (1988)[39]. That submission is not made out.
[37] WAG 36.
[38] AATA 214.
[39] 14 ALD 769.
27. There is scant evidence that Mr Nicolas’ psychological injury rendered him vulnerable to aggravation. Even if that was made out, and we are not satisfied that it is, Australian Postal Corporation v Nadge is not authority for the proposition put. The issue in Nadge’s case was whether symptoms that emerged in Nadge’s spine while undertaking family activities on a beach were consistent with a fresh injury or were a continuation of his previous spine injury. Lee J set out the correct test to be applied:
30. The following test formulated in Canale v. Commissioner of Main Roads
(1982) 1 WCR (WA) 163 was recited with approval by Burt CJ in F. and T. Grassi
Pty. Ltd. v. Ellendale Estate Pty. Ltd. (1985) WAR 294 at 297:
"That an injury or condition recurred when it played
up either spontaneously or because of the ordinary
stresses and strains of living and working and that
any consequent incapacity would be related to the
original accident. On the contrary, even though
the first injury left a weakness, even a great
weakness and a potential site of trouble, where
that trouble is precipitated by a new incident of
an accidental nature such as could well originate
trouble in its own right, that trouble should be
regarded as a new injury for which the latter
incident is the direct cause." It was obviously a
question of fact whether another injury had
intervened to break the chain of causation between
the original injury and the subsequent incapacity.[40]
[40] Above n 37, per Lee J, at [30].
28. One must apply commonsense to the facts of each case. The present case is not on all fours with Nadge’s case. The issue in Nadge was whether a fresh injury had occurred. Mr Nadge was fit and in full time employment, although not entirely free of symptoms relating to a previous injury, immediately prior to the emergence of symptoms during family activities on a beach, which subsequently rendered him totally incapacitated for work. It was found that his symptoms were the continuation of a previous injury and not a fresh injury. Nadge is not authority for the proposition put by Mr Richards.
29. Mr Nicolas was partially incapacitated by his upper limb injury and was undergoing a graduated return to work immediately prior to the claimed increase in incapacity that he attributes to an aggravation of a psychological injury. He did not suffer any incapacity for work as a result of his psychological injury at that time. We are reasonably satisfied that Mr Nicolas’ psychological injury was, in all likelihood, aggravated by the family crisis that occurred in November 2005, outside the context of his employment. That aggravation is not a natural progression or continuation of his previous injury. It is a fresh injury (in the ordinary sense of that word) that was precipitated by new circumstances outside the ordinary day to day circumstances of life that a man of his age would expect to encounter. Even if Mr Nicolas was rendered vulnerable to such an aggravation by his original injury, and we make no such finding, it does not follow that the new injury is compensable under the Act.
30. To the extent that the new injury alone was the cause of incapacity for work, that incapacity is not compensable under the Act (Re Pelgrave and Comcare [2005][41]; Re Sadek and Commonwealth (1988)[42]; Migge v Wormald Brothers Industries Limited [1972][43]). To avoid confusion it is desirable to set out part of what Mason J said in Migge v Wormald Brothers Industries Limited:
First, an existing incapacity results from the original injury if it follows and is caused by that injury and may properly be held so to result even if some supervening course had aggravated the effects of the original injury and prolonged the period of incapacity. If however, the existing incapacity ought fairly to be attributed to a new cause which has intervened and ought no longer to be attributed to the original injury, it may properly be held to result from the new cause and not the original injury.[44]
That passage was applied in Re Sadek & Commonwealth (1988)[45]. Senior Member McMahon, as he then was, said:
… the concept of an entirely new cause intervening to produce ensuing incapacity involves the idea of the replacement of the injury as the cause of the incapacity by a second incident again causing incapacity. Before the novus actus will be regarded as the only cause of the incapacity, it must be shown that the incapacity which would have resulted from the injury has ceased to exist and that the incapacity which does exist has resulted from the new cause as the sole cause. In considering this observation in the light of s 45 [of the Compensation (Commonwealth Government Employees) Act 1971 (Cth)] one must always remember that one is talking about total incapacity rather than partial incapacity. In other words, if there is a novus actus interveniens which completely displaces the prior cause of total incapacity, then s 45 has no operation. In other words it is possible to displace part of a total incapacity which would result in a partial incapacity where s 46 would be appropriate.[46]
[41] Above n 38, at [87].
[42] Above n 39, at 770-771.
[43] 2 NSWLR 29, at 44.
[44] Ibid, at [44].
[45] Above n 39.
[46] Above n 39, at 770-771.
31. On those authorities, it does not follow that an increase in incapacity for work that is not attributable to an employment related injury is compensable. One must carefully consider the evidence. In this case Mr Nicolas’ psychological injury was aggravated by his family circumstances in or about November 2005. As we have said, that is a fresh injury. If that injury caused an increase in the extent of Mr Nicolas’ incapacity for work thereafter (and we make no such finding), having in mind that his psychological injury had not hitherto been the cause of any amount of incapacity, for such an injury or related incapacity to be compensable under the Act, it is necessary to establish a material causal nexus with the employment (Comcare v Sahu-Kahn [2007][47]). If vulnerability or injury-related weakness is the proposed vector of such a connection, then it is necessary to establish that the vulnerability or weakness materially contributed to cause the fresh injury. The existence of mere vulnerability alone is not sufficient. In this case there is simply insufficient evidence to establish to the requisite standard that Mr Nicolas’ injuries rendered him psychologically vulnerable to the extent that the vulnerability materially contributed to cause the aggravation of his psychological condition in the context of the difficult family circumstances that pertained. It is more likely in our view that the fresh injury was a novus actus that intervened upon his previously existing psychological injury.
[47] FCA 15.
32. We note in passing that Mr Richards urged us to accept that Mr Nicolas suffers from Chronic Regional Pain Syndrome Type 1, and that that condition constitutes an injury that is to be distinguished from Mr Nicolas’ right upper limb and psychological injury. We are not satisfied that a diagnosis of Chronic Regional Pain Syndrome Type 1 is established on the medical evidence (being mindful of the diagnostic criteria for this condition including vasomotor, sudomotor and trophic changes). Dr Muirden reported a cervicobrachial regional pain syndrome.[48] Dr Warfe referred to a regional pain syndrome,[49] as did Dr Koperska[50] and Dr Sangster.[51] We accept that Mr Nicolas suffers from a chronic regional pain syndrome that has given rise to a consequential psychological injury. The regional pain syndrome is an injury under the Act that may be distinguished from the original right upper limb injury (Canute v Comcare [2006][52]). However, unfortunately for Mr Nicolas, even if the regional pain syndrome is a different injury to his psychological injury, and it may well be, the medical evidence clearly establishes that the syndrome was apparent at least from May 2005 (Dr Warfe). It follows that any incapacity flowing from that condition was taken into account by Dr Koperska on and before 18 November 2005. We are not persuaded that any increase in incapacity after 28 November 2005 is attributable to employment for the reasons already stated. Thus, the differential diagnosis of a chronic regional pain syndrome does not presently assist Mr Nicolas’ case.
[48] T75 folio 133.
[49] T27 folio 54.
[50] T64 folio 109.
[51] S21 folio 76.
[52] HCA 47 at [34].
33. It is necessary to deal briefly with the evidence of Dr Sangster. By Dr Sangster’s certificates, Mr Nicolas suffered total incapacity for work as the result of his upper limb condition and ‘reactive depression” from 6 September 2006 to 1 November 2006.[53] From 3 November 2006, Dr Sangster certified that Mr Nicolas was partially incapacitated for work as the result of his “(R) upper limb regional pain syndrome”[54] and was fit to work 15 hours per week (3 half days) from 3 November 2006, increasing to 20 hours per week (4 days at 5 hours per day) in the period to 3 May 2007. Dr Sangster’s explanation for the reduction in Mr Nicolas’ capacity from November 2005, is that Mr Nicolas was deconditioned for work by the period spent away from his employment and from his rehabilitation program while supporting his family in Melbourne. We accept that explanation, but note that any increase in Mr Nicolas’ incapacity for work as a result of such deconditioning is not related to his employment and is not, therefore compensable. Furthermore, Dr Sangster related Mr Nicolas’ “reactive depression” to his “family issues”. That is consistent with our conclusions that the family crisis was, in effect, a novus actus interveniens. Thus, we are reasonably satisfied that any incapacity for work that Dr Sangster attributed to “reactive depression” from 6 September 2006 to 3 November 2006, was not the result of an injury under the Act and is not compensable.
[53] S7 and S10.
[54] S14, S16, S21, S22, S23, S27 and S31.
34. In sum, therefore, we are reasonably satisfied that Mr Nicholas suffered a partial incapacity for work as a result of his compensable upper limb injury throughout the period from November 2005 to November 2006. We are reasonably satisfied that Mr Nicolas did not suffer from any incapacity for work as the result of his (then) sub-clinical psychological condition in November 2005.[55] We find that if Mr Nicolas suffered any incapacity for work as a result of a psychological condition, such incapacity resulted from aggravation of his psychological injury by factors outside and unrelated to his employment.
[55] T65 folio 110 refers.
35. Even though Dr Koperska considered that Mr Nicolas would be able to increase his hours of work to 30 hours per week from 5 December 2005, that assessment was prospectively made on 18 November 2005. There is no evidence that Dr Koperska’s expectations were realised. Doing the best with the available evidence, we are reasonably satisfied that Mr Nicolas was not capable of working more than 25 hours per week during the period in question. We so find.
36. Before moving on, it is necessary to deal with two matters contended for by Comcare. Comcare submitted that Mr Nicolas’ psychological injury was in material part the result of his failure to obtain a transfer to Melbourne, and therefore, is excluded for compensation purposes as an injury under the Act. That submission is not made out. The evidence concerning Mr Nicolas’ interest in obtaining a transfer is essentially his own, supported by letters from medical practitioners to which we have referred. It is plain enough that Mr Nicholas wanted a transfer to Melbourne. However, he did not formally request a transfer, and perhaps unsurprisingly, no transfer was arranged or approved. The concept of ‘failure to obtain’ connotes not just denial or frustration of desire, but disappointment in the face of deliberate effort. Evidence is required to establish each of these preconditioning factors before the exclusionary effect is enlivened. The evidence before us is not sufficient for that purpose.
37. Comcare asserted that Mr Nicolas’ failure to obtain flexible leave credits in the manner to which he had previously been accustomed, connotes a failure to obtain a benefit under the Act, whereby his psychological injury should be excluded for compensation purposes. We do not agree. Mr Nicolas’ rehabilitation program and graduated return to work meant that he was not able to flexibly manage his hours of work to facilitate visiting his family in Melbourne as he had done previously. Even though flexible working hours may be a matter of entitlement pursuant to the applicable terms and conditions of Mr Nicolas’ employment, we accept that the arrangement of working hours in a manner that is beneficial to the employee may connote a ‘benefit’. Thus, if there is evidence that a claimed injury resulted from any failure to obtain that benefit, the claimed injury is excluded as an injury under the Act. In Mr Nicolas’ case, there is insufficient evidence to establish that his psychological injury was the result of his failure to obtain the benefit of flexible working hours. The converse also holds: there is not sufficient evidence to establish to our satisfaction that Mr Nicolas’ reduced ability to accrue flexible leave credits during the course of his rehabilitation program materially contributed to any aggravation of his compensable injuries.
What is suitable employment for Mr Nicolas?
38. In order to determine what constitutes suitable employment for Mr Nicolas, it is necessary to have regard to the matters set out in the definition of ‘suitable employment’ at subs 4(1) of the Act.
39. Having regard to the evidence concerning those matters, and despite the limited submissions on this point, we find that suitable employment for Mr Nicolas is employment by the Commonwealth, such as he was engaged in prior to the injury in February 2005 and during the period of his rehabilitation program, which was approved of by his treating doctors. Essentially, suitable employment for Mr Nicolas is in work as an information technology manager in Canberra. Mr Nicolas moved to Canberra in order to take up the employment in which he was engaged prior to the injury. That was a matter of his choice.
40. We accept that the distance of Mr Nicolas’ employment from his family, and the family crisis Mr Nicolas faced in November 2005 and subsequent months, are relevant matters to consider. However, such matters are personal matters for Mr Nicolas. It was open for him to apply for a transfer to Melbourne if he so chose. He did not. It was open for him to take personal leave to attend to the crisis. That is what he did. The fact that Mr Nicolas left the rehabilitation program in which he was engaged in order to attend to his family in Melbourne is a matter that may be relevant when determining the amount he was able to earn pursuant to subs 19(4) of the Act. The determination of what constitutes suitable employment requires consideration of Mr Nicolas’ suitability for rehabilitation. Plainly enough, family crisis intruded upon the rehabilitation program Mr Nicolas was undertaking. This caused delay in his rehabilitation and resulted in Mr Nicolas being deconditioned for work. On balance, even though we accept that Mr Nicolas had good and compelling reasons to attend to his family in Melbourne, and was adversely affected by the crisis he faced there, we are not persuaded that these matters render Commonwealth employment in Canberra in the field of work for which he is otherwise suited, unsuitable.
Was Mr Nicolas in suitable employment?
41. We are satisfied that Mr Nicolas was in suitable employment prior to his injury. Subsequently, Mr Nicolas suffered periods of incapacity. From 11 April 2005 to 28 November 2005, and from 3 November 2006 to 28 February 2007 (ongoing), Mr Nicolas was undertaking a rehabilitation program pursuant to s.37 of the Act.[56] His employment in the course of that program was comprised of duties subject to medical restrictions that were monitored by his treating doctors. We are satisfied that Mr Nicolas’ employment in the rehabilitation program was suitable employment in the circumstances. As we have said, that employment was not rendered unsuitable as a consequence of Mr Nicolas’ distance from his family or the family crisis that occurred in November 2005.
[56] T21, T26, T27, T29, T37, T41, T49, T51, T62, T63, T68, T77, S15, S19, S20 and S26 refer.
42. Mr Nicolas was in suitable employment when he took leave from work and left his rehabilitation program and Canberra for personal reasons. The employment and the rehabilitation program remained suitable employment for him to which he returned on 3 November 2006.
Did Mr Nicolas fail to complete a reasonable rehabilitation program and, if so, was the failure reasonable in all of the circumstances?
43. Mr Nicolas was undertaking a rehabilitation program prior to his departure to Melbourne on 28 November 2005. This was agreed upon, approved, monitored and amended from time to time by his treating doctors (Dr Yeung, Dr Warfe and Dr Koperska)[57]. We are satisfied that the program was reasonable. We note that the issue of whether the rehabilitation program was reasonable requires consideration of the matters set out at subs 37(3) of the Act. No detailed evidence was led or submissions made on this point or in relation to this subsection.
[57] T19, T20, T23, T28, T33, T35, T38, T39, T40, T45, T47, T48, T52, T55, T58, T64, S7, S14, S16, S21, S22, S23, S27 and S29 refer.
44. We are not persuaded that the rehabilitation program was rendered unreasonable simply because Mr Nicolas wanted, albeit for very good reasons, to be with his family in Melbourne. One may expect a compassionate approach by an employing agency or department in such circumstances, in relation to personal leave for example, or favourable consideration of a request for transfer of the rehabilitation program or the employment, having regard to and weighing all relevant matters pursuant to subs 37(3). However, in Mr Nicolas’ case, there is no evidence that he requested a transfer of this nature or that he was prevented from attending his family in Melbourne, which he did on approved leave on 28 November 2005. The contemporaneous evidence of Ms Wilson indicated that she expected the family situation to stabilise in a period of 2 to 6 weeks.[58] On that basis it was reasonable to approve Mr Nicolas’ application for personal leave at that time to attend upon his family. Consequent upon a discussion between Mr Nicolas and Mr Wheeler, Injury Management Advisor,[59] it appears that is what occurred.
[58] Exhibit A2.
[59] Exhibit A9.
45. It is not controversial that Mr Nicolas left the rehabilitation program on 28 November 2005 and that he resumed the rehabilitation program on 3 November 2006. We are satisfied that Mr Nicolas failed to complete the rehabilitation program during the period of his absence from it.
46. Considering the nature of the family crisis in Melbourne, the weight of the contemporaneous evidence concerning the desirability of Mr Nicolas attending upon his family, the evidence of Dr Lavoipierre that treatment of his injury may have been facilitated by proximity to his family[60] and Mr Wheeler’s contemporaneous comments[61] we are satisfied that his failure to continue with the rehabilitation program and complete it was reasonable at the time in all of the circumstances.
[60] T51.
[61] Exhibit A9.
Are there any other relevant matters to which the Tribunal should have regard?
47. It is necessary to have regard to any other relevant matters concerning Mr Nicolas’ ability to earn (Woodbridge v Comcare (1994)[62]).
[62] 20 AAR 196.
48. There is no evidence that Mr Nicolas sought or undertook any employment, or earned any amount thereby, during the period he was attending on his family in Melbourne. We note in passing his evidence concerning his wife’s hobby of restocking vending machines in Melbourne, but are not persuaded, and there is no objective evidence, that he earned any amount in employment thereby.
49. The effect of the crisis in Mr Nicolas’ family on his ability to earn is a relevant matter. As we have found, that crisis aggravated Mr Nicolas’ previously sub-clinical psychological injury, and on the evidence of Dr Lavoipierre and Dr Sangster, caused an increase in the level of Mr Nicolas’ incapacity, to the extent that he was certified unfit for work from 15 December 2005 to 1 November 2006. Subsequently, he was certified partially fit for work to the level of 15 and later 20 hours per week, as the result of his upper limb injury. We have found that the level of Mr Nicolas’ incapacity relating to his upper limb injury increased as the result of deconditioning during the period he was absent from work and from the rehabilitation program.
50. The fact that Mr Nicolas’ employment and rehabilitation program was located in Canberra, a substantial distance away from his family, is a relevant matter to have regard to. It was reasonable in the circumstances for Mr Nicolas to take leave from his employment and rehabilitation program on 28 November 2005 in order to attend upon his family in Melbourne. He did not return to Canberra until on or about 6 September 2006. He was not certified fit to resume a graduated return to work program until 3 November 2006. By 28 February 2007, he was certified fit to work only 20 hours per week – 5 hours per week less than prior to his departure from the rehabilitation program in November 2005.
51. Plainly enough, these circumstances adversely affected Mr Nicolas’ ability to earn in suitable employment. He was physically removed from the location of his Commonwealth employment and was unavailable, practically, to attend work. On his return, the extent of his incapacity was greater than when he left and remained at a higher level at least until 28 February 2007. His rehabilitation and return to work program was delayed.
52. We note that Mr Nicolas maintained a residence in Canberra throughout this period and did not formally apply for a transfer to Melbourne during the period of his absence.
53. Considering these matters, we are satisfied that it is appropriate to disregard incapacity for work that Mr Nicolas suffered as a result of factors that were outside and unrelated to his employment, including incapacity for work that was the result of aggravation of his compensable injuries by the family crisis he faced in November 2005 and subsequent months. To be clear, it is appropriate in the circumstances to disregard the reduction in Mr Nicolas’ ability to earn in suitable employment as the result of his unfortunate personal circumstances during the period in question. It is also appropriate to disregard the reduction in his ability to earn that is the result of the delay in Mr Nicolas’ rehabilitation and return to work that was caused by his absence from work during that period.
what is the ‘ae’ amount?
54. On the basis of the foregoing, considering the extent of Mr Nicolas’ injury-related incapacity for work and his personal circumstances, we are reasonably satisfied that the amount Mr Nicolas was able to earn in suitable employment from 15 December 2005 to 28 February 2007, is to be calculated at the level of 25 hours per week in relation to his normal weekly earnings. We so find.
55. As we have said, we do not accept Mr Nicolas’ submission that he was totally incapacitated for work as a result of his compensable injury. We find that he was not. Nor do we accept that any additional incapacity Mr Nicolas suffered as a consequence of his unfortunate personal circumstances at that time, if any, is rendered compensable by those circumstances. We find that it is not. Nor do we accept Comcare’s submission, based on Dr Koperska’s prospective assessment on 18 November 2005, that Mr Nicolas was able to earn at the level of 30 hours per week at any time during this period. We find that he was not. Dr Koperska’s assessment was made prospectively on the basis of circumstances pertaining in her knowledge in November 2005. Those circumstances changed and Mr Nicolas left his rehabilitation program. There is no persuasive evidence that Mr Nicolas’ ability to earn increased in December 2005 or thereafter to at least February 2007. We find that it did not. The evidence suggests that it is more probable than not that Mr Nicolas’ ability to earn in suitable employment declined thereafter as a result of his absence from treatment and the rehabilitation program for personal reasons.
56. It follows that the decision under review in matter A2006/145 is affirmed.
57. The reviewable decision in matter A2007/1551 is set aside and in place thereof the Tribunal decides that the amount Mr Nicolas was able to earn from 18 April 2006 to 28 February 2007 is to be calculated at the level of 25 hours per week in relation to his normal weekly earnings. Thus, the matter will be remitted to Comcare to determine Mr Nicolas’ weekly compensation entitlements pursuant to subs 19(2) and 37(5) of the Act.
58. The parties have 14 days in which to make submissions in relation to costs. The Tribunal is minded to order Comcare to pay Mr Nicolas’ reasonable costs in application A2007/1551, and will so order pursuant to subs 67(8) of the Act if no submissions are received within the specified period.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: ………signed……………………..
Jane Gribble
AssociateDate of Hearing 10-13 September 2007
Date of Decision 16 October 2007
Counsel for the Applicant David Richards
Solicitor for the Applicant Bill Redpath
Pamela Coward and Associates
Counsel for the Respondent Ben Dube
Solicitor for the Respondent Rosa Pezzella
Australian Government Solicitor
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